Taking Stock of House-Senate Differences

I am often asked about the differences between the House and Senate. Sometimes I jokingly respond, “Do you have another hour?” However, some political scientists make the case that the two bodies have become more alike.

In their Journal of Politics article, “The Gingrich Senators and Party Polarization in the U.S. Senate,” Sean Theriault and David Rohde argue that the more the Senate is populated by former House Members who cut their political teeth during the Republican revolution sparked by former Speaker Newt Gingrich (Ga.), the more the Senate is taking on the coloration of its more populous counterpart.

While they concede this is due in part to the changing political orientation of states, they argue it can also be traced to the partisan conditioning of Senators when they served in the House. (I maintain that the partisan turn in Congress began in the late 1960s with the Democrats’ reform revolution that culminated in the 1970s by replacing the old order of committee government with party governance. It simply accelerated under Republicans.)

One difference that remains is the Senate’s more generous allowance for floor amendments. While the House tends to limit floor amendments generally, and strictly enforces its germaneness rule, the Senate is more open. Its germaneness rule applies only to general appropriations and budget measures. Everything else is fair game for random potshots using any weapon available.

That scatter-shot analogy is not chosen lightly: Increasingly, nongermane amendments in the Senate are offered for strategic political purposes. This may be where the “Gingrich Senators” are affecting the process in new ways. Backbenchers Gingrich and his allies mastered the political amendment tactic in the 1980s to embarrass House Democrats.

Let’s take the STOCK Act as a case study. That acronym, coined in 2006 by Reps. Brian Baird (D-Wash.) and Louise Slaughter (D-N.Y.), stands for Stop Trading on Congressional Knowledge. The bill is designed to make it unlawful for Members of Congress and their staffers to use nonpublic information derived from their official positions to make a private profit.

Slaughter recently told me how she had been pushing the bill for six years to no avail. In this Congress, she and (now) prime sponsor Rep. Tim Walz (D-Minn.) had only nine co-sponsors until “60 Minutes” aired a segment Nov. 13 citing alleged insider stock trading by Members of Congress. With that expose, the bill took on an additional 277 co-sponsors almost overnight.

Within four days of the program, Sens. Scott Brown (R-Mass.) and Kirsten Gillibrand (D-N.Y.) had introduced their own STOCK bills. The Senate Homeland Security and Governmental Affairs Committee held a hearing on the measures Dec. 1 and ordered an original bill reported Dec. 14. Chairman Joe Lieberman (I-Conn.) filed the bill Jan. 26 (without a report), and that same day it was placed on the calendar and called up by Majority Leader Harry Reid (D-Nev.). Reid proceeded to offer a substitute (without explanation of the changes).

A committee report by either chamber might have clarified whether the intent and/or effect of the bill was to waive Congress’ Speech or Debate Clause immunity under the Constitution, thereby giving federal agents unfettered access to Members’ office files, computers and phone conversations. (Proponents argued the bill would treat Members of Congress the same as every other citizen.) If so, that would be a huge intrusion by the executive on Congress’ independence. But Congress was in a hurry to blunt public fury.

The Senate proceeded to consider two dozen amendments over three days, including a constitutional amendment to limit the terms of Members, an amendment prohibiting unauthorized earmarks and amendments to deny pensions to Members who go to work as lobbyists or are convicted felons. Of the 10 amendments adopted, the one gaining the most attention was by Sen. Chuck Grassley (R-Iowa) and would extend the insider-trading prohibition to the disclosure of nonpublic political intelligence to firms that sell such information. The Senate then passed the bill, 96-3.

The House took a completely different tack.

Majority Leader Eric Cantor (R-Va.) took charge of drafting a modified version that replaced the Grassley amendment with a study and expanded the insider trading prohibition to all government employees. Instead of bringing the measure to the floor under an open amendment process, the Rules Committee arranged to bring up the bill under a suspension of the rules, meaning only 40 minutes of debate, no amendments and a two-thirds vote for passage.

House leaders have a paternal instinct to protect Members from themselves on sensitive matters such as ethics by barring nasty floor fights over who has the hairiest hair shirt or most stinging self-flagellation whip. While the closed process provoked some squawking from Members of both parties, the bill passed overwhelmingly, 417-2.

The ball is now back in the Senate’s court, with no apparent rush to resolve differences. The Senate may, at least temporarily, be reverting to its more traditional role of serving as the saucer in which to cool the hot coffee from the House — or, in this case, its own instant brew.

Don Wolfensberger is a Congressional fellow at the Woodrow Wilson Center, a resident scholar with the Bipartisan Policy Center and former staff director of the House Rules Committee.